By Paul Grant, Special to the News
March 15, 2003

Allowing jurors to submit questions to witnesses in criminal trials makes sense. Allowing jurors to submit questions shows respect for jurors, an understanding of how people process information, and a recognition of the jury's function in the process we call "trial by jury."

Jury trials legitimize the criminal justice system in the eyes of the public - but only when the public believes jury trials work to produce justice. We entrust life-and-liberty decisions in criminal trials to the jury precisely because we the people have never trusted the government to make these decisions for us. But if we do trust jurors, i.e., ourselves, then we must also show jurors proper respect. If jurors want to ask questions during trial so they will better understand the case as it progresses - and surveys show they do want to - then they have a right to ask. Jurors will stay more involved in trials and make better decisions if they can ask questions of witnesses when the questions are on their minds.

Allowing juror questions is not a new idea. From the time of Sir Walter Raleigh's trial in England in 1603 through at least the time of Aaron Burr's treason trial in Virginia in 1807, it was not uncommon for jurors to ask questions of witnesses in English and American criminal trials. Courts eventually abandoned that practice and I suspect the reason was that lawyers and judges decided that jurors could be better controlled if they were made to keep quiet. Jurors also lost the right to take notes, a right they had as far back as the late 17th century. But recently the right to take notes, as well as the right to ask questions, is being restored as courts experiment with "jury reform."

Many criminal defense attorneys oppose juror questioning because they think it might lead to more convictions. Some critics fear that juror questioning will make jurors part of the prosecution team, and that jurors may occasionally ask tougher questions than the prosecutor. Others believe juror questioning will make it harder for defendants to decide whether they should testify. Another worry is that jurors will blame the defense when certain questions they submit are not asked.

I am a criminal defense attorney and I think the various fears about juror questioning are mostly irrational. Trial judges will advise jurors that only legally proper questions can be asked and most jurors will understand and not blame the defendant when their question is not asked.

I am confident that allowing juror questions will typically work for the defendant by engaging jurors to do a better job of questioning and challenging the prosecutor's evidence. If it doesn't, too bad. Good defense lawyers will enlist the jurors in attacking the weakness of the prosecutor's case. For those defendants who are afraid to be tried by a questioning jury, they can waive their right to a jury trial and ask for a judge.

If judges will allow the lawyers an adequate opportunity to discuss the jury's role with the jurors during the jury selection process, jurors can be enlisted to assist the defense in making sure the government has adequate proof to ask for a conviction. Most of the testimony in a typical criminal case comes from prosecution witnesses and impeaching those witnesses and showing the weakness of the government's evidence is the best means for winning an acquittal. Good jurors will assist the defense in grilling prosecution witnesses about holes in the evidence.

So many times, after a trial has concluded, I have learned from talking with jurors that the jurors misunderstood something important about the evidence or the law, and that their misunderstanding caused difficulties during deliberations. Sometimes, these misunderstandings led to convictions. Many times, these misunderstandings could have been avoided by allowing the jurors to question the witnesses or question the lawyers (which should also be allowed). Jurors hate to learn after a trial that they might have committed an injustice because the court and the lawyers prevented them from learning what they needed to know to arrive at a just verdict. Questioning by jurors might help alleviate that problem.

During the past two centuries, judges and lawyers have taken more and more control over the courtroom, diminishing the role of the jury. Formal rules of evidence and procedure often appear to be more important than justice. Jurors were deprived of pen, ink and paper for note-taking, and they have been silenced. Allowing juror questioning in criminal trials is a welcome step forward toward revitalizing the American jury.

Trust the jurors.

Paul Grant is a criminal defense, constitutional, and commercial trial and appellate lawyer in private practice in Englewood.

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